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Freedom to Believe

Wendy Outhwaite QC

July 2008

Half a century ago, after her royal siblings took turns throughout their respective reigns to burn a selective subjects adhering to the wrong religions, Elizabeth I refused to 'make windows into men's souls' and thereby signalled the end of State interference into religious belief in England. We have had freedom of religious belief ever since. Although there remains a state religion, the Church of England, which forms part of our constitution and affects the succession of the monarchy, an individual is free to believe whatever he chooses. This is now such well-established liberalism as to be utterly unremarkable to us. Article 9 of the European Convention on Human Rights however goes a little further: It affirms not only the familiar - that 'everyone has the right to freedom of thought, conscience and religion', but goes on to say that there is a right 'in public or private to manifest his religion or belief, in worship, teaching, practice and observance'. Not only are we free to believe what we want, but we are free to manifest it.

Article 9 is not limited to protecting only religious convictions. It also protects other beliefs. While it is generally accepted that the religious beliefs of others should be respected, it is not so clear why any zany, quirky beliefs dreamt up by individuals should be accorded the same degree of deference. Some people will believe anything. Could 'Elvis is God' slogans really become protected by law? In a time when the 2001 census recorded 390,127 people whose religious belief was officially Jedi (which was a far larger group than those recorded as Jews or Sikhs or Buddists or Zoroastrians) we risk descending from, literally, the sublime to the ridiculous. May the farce be with you. This is unfortunate. Article 9 arose to prevent the horrors of religious persecution and the holocaust that characterised the Second World War. Freedom of religion is a serious matter. Its protection should not be undermined by the frivolous.

In order that the court does not have to protect an individual's right to manifest a belief that is unworthy, Lord Nicholls in R(Williamson) v SS Education and Employment[2005] 2 AC 246 at paragraphs [23] and [24] developed a test to sort the wheat from the chaff. A 'belief' within Article 9, (i) must not be trivial (ii) must be consistent with basic standards of human dignity or integrity and (iii) must be coherent, in the sense of being intelligible and capable of being understood. The last one could be particularly tricky: anyone challenged with explaining for the very first time the now familiar concepts of virgin birth, transubstantiation, resurrection, miracles of any sort (including moving mountains or parting seas) might find it difficult to establish 'coherence' or 'intelligibility'. It might appear as preposterous as alien invasion or any other sci-fi lie. Establishing credibility for a creed is hard – by its nature, it may require a leap of faith – but coherence is all that is required. Remarkably, an Article 9 'belief' can also mean 'no belief': 'The atheist, the agnostic and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist.' So far, the courts have considered fairly mainstream beliefs: for example, the right of parents following a particular religion to administer corporal punishment to children in schools (R (Williamson) v SS Education and Employment [2005] 2 AC 246); pacifism (Arrowsmith v UK 19 DR 5 (1980)); the prohibition on sex before marriage (R (P) v Governors Millais School [2007] EWHC 1698 (Admin)), and the requirements of religious dress in schools ( R(Begum) v Headteacher and Governors of Denbigh High School[2006] UKHL 15; (R (X) v Y School[2007] EWHC 298 (Admin) ).

There are limits though. The Court of Appeal did not find that there was a 'belief' which triggered the protection of Article 9 in R (Countryside Alliance) v HM A-G [2006] EWCA Civ 817. Those challenging the ban on foxhunting cunningly asserted that 'hunting is at the very core of mankind's psyche and those who exercise their conscience to [hunt] subscribe to a belief that is at least of comparable importance to have of a religious belief.' The Court disagreed.

Sometimes it is difficult to predict whether the Court will find a particular action is a manifestation of belief, or not. Similar cases may have dissimilar outcomes. For example, Sikh girls wearing the Kara bangle at school was thought to be a manifestation of their belief, whereas the wearing of a silver ring to show adherence to the tenet of no sex before marriage, was not (R (P) v Governors Millais School . What is absolutely clear is that not all acts motivated by a religion or belief are a manifestation of that religion or belief: see Williamson per Lord Nicholls at paragraph [35]. The manifestation must be 'intimately connected' with the belief. It may depend on whether it is a religious obligation, or not. It can be difficult to show that an action is a manifestation of belief. In R (Boughton) v HM Treasury [2006] EWCA Civ 504 pacifist taxpayers objected to their taxes contributing to a single fund which was used, in part, for military purposes. Mummery LJ found that paying tax into a separate fund would not be a manifestation of belief. . Similarly an advert by the Church of Scientology for an E-meter (to measure the electrical characteristics of the static field around the body) was not held to be a manifestation of belief.

Once a claimant has established a manifestation of belief, there is a high threshold to clear before proving that there has been an interference with it. In both Steadman v UK (1997) 23 EHHR CD 168 and Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932 employees dismissed for refusing to work on a Sunday did not establish an interference with their Article 9 rights. The employee who voluntarily accepts a job which includes Sunday working has no Article 9 remedy. Similarly, in the matter of religious dress at school, there was no interference in prohibiting the jilbab (R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15) or the niqab veil (R (X) v Y School [2007] EWHC 298 (Admin) ) because the girls were free, at least theoretically, to attend other schools with different dress codes. It appears that Article 9 does not require that a person can manifest his belief whenever and wherever he likes. If there is an alternative provision where the belief can be manifest, Article 9 is satisfied.

Even if there is an interference with the Article 9 right, the interference can be justified. In R (Surayanda) v Welsh Miners [2007] EWCA Civ 893A a bullock named Shambo was owned by the Community of the Many Names of God, who believe in the preservation of life. Shambo had infectious bovine TB. The Court of Appeal found that the Welsh authorities were justified in slaughtering Shambo on health grounds, notwithstanding that it was an interference with the owner's belief. Similarly, emergency blood transfusions for children have been ordered by the courts in the face of strong religious opposition to blood products by Jehovah's witness parents, because such action is objectively justified

It should be remembered that Article 9 is not the only protection for religious belief. The criminal law has evolved significantly for example the Religious and Racial Hatred Act 2006 prohibits the stirring up of racial hatred. The delicate balance between freedom of religion and freedom of expression is not always easy: the offence caused by Salman Rushdie's 'The Satanic Verses' resulting in a fatwa and the depictions of the prophet Mohommed in cartoons in Denamark provoking public outcry, illustrate the depth of feeling in religious matters. The Equality Act 2006 protects the existence of faith schools, so that people of different faiths can be educated separately and in accordance with their faith. Arguably employment law provides individuals with the most effective protection of their religious belief. Religious equality regulations required a British Airways employee to be permitted to wear a symbol of her faith, namely a crucifix, whereas Article 9 could not secure permission for a schoolgirl to wear a jilbab: Eweida v British Airways (EAT 19 December 2007). Employers may be required to make robust arrangements to facilitate religious observance even if it is against their assumed inclination. One Royal Navy sailor, a self-declared devil-worshipper, now has a dedicated space for his worship on his warship. Article 9 should be seen in its context. It is important, but not in isolation. In our multicultural and pluralistic society we are bound a lot more protection of beliefs in the courts.

- Article 9 includes the freedom of belief and the freedom to manifest belief- A belief does not have to be a religious conviction- A belief can be an absence of belief- A belief (i) must not be trivial (ii) must be consistent with basic standards of human dignity or integrity and (iii) must be coherent, in the sense of being intelligible and capable of being understood- It is hard to predict whether an act is a manifestation of belief or not- A religious obligation is likely to be a manifestation of belief- A religious motivation is not likely to be a manifestation of belief- An interference with an Article 9 right can be justified- Other legislation also provides protection for religious beliefs